Summary: Mrs C complains that the Council has failed to provide suitable travel arrangements for her son, D, to the grammar school he attends. Aside from sending Mrs C a misleading decision letter in response to her initial application, the Ombudsman has not found fault in the way the Council handled her application or responded to her complaints about this. However, the Council should have told Mrs C that she could appeal when she continued to raise concerns about suitability of the transport. The Council has agreed to offer Mrs C an appeal, and the Ombudsman considers that it would be reasonable for Mrs C to use that appeal right.

The complaint

1. Mrs C complains that the Council has not made suitable travel arrangements for her son, D, to the grammar school that he attends.
2. She has raised concerns about the way her application was handled and about the way that the Council considered her concerns that:
• the route to the pick-up point is not a safe walking route; or
• the present arrangements are unsuitable because the bus sometimes arrives after school starts and leaves after school before D is able to catch it; and
• the present arrangements allow no flexibility for D to attend after-school clubs.

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The Ombudsman’s role and powers

3. We investigate complaints about “maladministration” and “service failure”. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as “injustice”. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We may decide not to start or continue with an investigation if we believe it would be reasonable for the person to ask for a council review or appeal. (Local Government Act 1974, section 24A(6), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I have considered Mrs C’s written complaint and supporting papers and spoken with her. I have made enquiries of the Council and considered its responses. I have had regard to the Council’s Home to School Transport Policy and secondary school admissions booklet, the Department for Education’s Home to school travel and transport guidance and the School Admissions Code. I have also sent Mrs C and the Council a draft decision and considered their comments.

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What I found

Legal and administrative background

Transport for eligible children to the nearest suitable school

7. The Department for Education issued Home to School Travel and Transport Guidance (the statutory guidance) in July 2014. (The Education Act 1996 sections 508 and 509, and part 6 of the Education and Inspections Act 2006)
8. Under Section 508B of the Education Act 1996, councils must make “travel arrangements as they consider necessary” to provide suitable free transport for “eligible children” of compulsory school age to attend their nearest qualifying school with places available. In relation to eligible children, the statutory guidance states “For arrangements to be suitable, they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study”.
9. Eligible children are defined in Schedule 35B and include:
• children living outside “statutory walking distance” from the school (two miles for children aged under eight, three miles for children between eight and 16);
• children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit if the school is between two and six miles (aged 11 to 16 and for transport to one of their three nearest qualifying schools).

Discretionary transport

10. Under Section 508C of the Act, Councils can “make such transport arrangements as they consider necessary” on a discretionary basis for children who do not meet the eligibility criteria under Section 508B. The guidance recognizes that an authority will need to balance demands against their funding priorities.

The Council’s policy

Discretionary transport to selective schools

11. Under the Council’s policy, it uses its discretionary powers to provide free transport for children attending a selective school of families who qualify under the low-income criteria, and who live two miles or more from the school as measured by the shortest available walking route.

What transport may be provided

12. The Council’s policy states:

“Where a child is entitled to transport under this policy, the Council will provide suitable transport and seek to ensure this is cost effective. The transport provided may take the form of a bus pass, train pass, seat on a contract vehicle e.g. hired bus, or a minibus/taxi e.g. for children with special educational needs and disabilities. A fuel allowance may be provided in the circumstances described above”.

Measurement of home to school distance

13. The Council’s policy states:

“The Council uses a Geographical Information System (GIS) to measure and calculate home to school distances.”

“The GIS measures the distance using the Ordnance Survey Highways road network data which is the base data for many online mapping and routing applications. The route measured will start at the point on the road network that is closest to the Ordnance Survey address point of the pupil’s home, and will end at the point on the road network closest to the address point of the school.”

Fuel allowance

14. The Council’s policy states:

“Where a child is entitled to transport, the Council can provide a fuel allowance for parents to take their children to and from school, where it is more cost effective than providing contracted or arranged transport. Payments are made in advance.”

“The Council would pay parents two return journeys at 45p per mile. Where this is not cost effective, 17p per mile can be considered.”

What happened

15. In March 2019, Mrs C’s son, D, was offered a place in Year 7 for September 2019 at his first preference grammar school in the normal admissions round. According to the Council’s GIS system, the school is over six miles from the family home. Mrs C applied for school transport and provided a copy of the previous year’s tax credit award, showing details of the family’s income.
16. In June, the Council wrote to Mrs C and said that D was not entitled to transport because he was not attending the nearest available school. It advised, however, that there might be an entitlement to transport if the low-income criteria were met.
17. Mrs C wrote to the Council and asked why D was not eligible for transport when they met the two-mile minimum distance and the income criteria set out on the Council’s website. The Council asked her to submit a full copy of her 2019/20 tax credits letter, as the application related to that year.
18. Mrs C provided the requested letter for 2019/20 and at the same time complained that the Council had not responded to her previous questions about entitlement. The Council awarded D transport on 11 July and explained that it had needed proof of low-income to confirm that he was entitled to home to school transport.
19. At the end of July, the Council wrote to Mrs C with the details of the bus company and where the travel arrangements could be found on its website.
20. Mrs C complained to the Council’s Chief Executive in early August. She did not consider that the Council had responded properly to her questions about entitlement. She also complained that D would have to walk along a clearly unsafe route to the bus pick-up point.
21. The Council responded to Mrs C’s complaint about the way it had considered her application. It apologised for the decision letter wrongly saying it had refused transport because D was not attending the nearest school when the reason was that Mrs C had not provided current evidence of low income. It also said it felt the walking distance to the pick-up point was reasonable and it was the parents’ responsibility to get their children to the pick-up point if they felt this necessary on safety grounds.
22. The bus company sent the family a bus pass for D in late August, though this referred to the wrong route. Mrs C contacted the Council’s transport team about this. She also complained to the Ombudsman about the way the Council had considered her application, the evidence it required, its response to her complaint, the electronic system it uses, and the suitability of the route to the pick-up point.
23. On the first week of the autumn term, D was a few minutes late for school on three occasions because the bus was late. There was also some confusion over which bus stop D should use after school. The bus stop was on the opposite side of the dual carriageway from D’s school to that shown on the bus company’s website. It was also difficult for D to cross the dual carriageway in time to catch the bus.
24. Mrs C and her family started driving D to school the following week. She wrote to the Council about the service problems and was advised to contact the bus company. She repeated her concerns about the safety of the route and suggested that the solution might be to return the bus pass and receive a mileage allowance instead. The Council advised her to contact the Ombudsman.
25. In mid-September, she wrote to the bus company with her concerns. She said that an elderly family member was having to take D to school and he often missed the bus home as it had already left. She was also concerned that D felt stressed and vulnerable having to travel on an almost empty bus. She suggested that the bus might be rerouted past her house but received no response.
26. Mrs C kept some records of the bus times. When returning from dropping D at school, she noted the bus at a range of locations a few miles from the school on eight occasions. In her view, the times and locations indicated that the bus would likely arrive late on those occasions, so they continued to drive D to school.
27. In November, the family started driving D two and a half miles to a pick-up point for a different bus which only operated in the morning but would get him to school on time. D continued to miss the bus home at least once a week, so they had to collect him from another bus at the second pick-up point. Mrs C also expressed concern that there was no later bus that he could catch, which meant he could not attend after-school clubs.
28. In January 2020, Mrs C contacted the Council because the machine on the second bus service would no longer accept D’s card. She said that D travelled to school the following day on the original bus but was around 10 minutes late arriving, so she asked if the alternative bus route could be reinstated. The Council arranged for the card to be reactivated so that D could use both routes.
29. Following the closure of schools during the Covid-19 lockdown period, and with her continuing concerns about the suitability of the bus service, Mrs C says that she no longer wishes to apply for a bus pass for D for the next school year. She instead intends to ask the Council for a fuel allowance.

My assessment

Handling of application

30. Mrs C has complained about the handling of D’s transport application, the problems encountered getting the bus pass and the Council’s response to her complaint about this.
31. The Council has already apologised for the error in the initial refusal letter sent. I consider that was a suitable response. I do not consider that this error caused Mrs C further injustice because she was, in any event, asked to provide up-to-date proof of low income to qualify for transport, and it was appropriate for the Council to ask for this.
32. As to any issues with the bus pass, I see no fault here. It was appropriate for the Council to direct Mrs C back to the bus company.
33. I appreciate that the Council did not initially respond fully to her questions, because it was seeking a quick way to resolve her concerns. I see no fault here. This was a reasonable approach for the Council to take, and it responded more fully once it was clear that she wanted a more detailed response.

Suitability of transport

34. Mrs C has complained to the Council that the travel arrangements for D are unsuitable. She also says that D is an eligible child under the statutory low-income criteria. She says she has driven the route and that the distance is six miles from their home. She has also provided an internet-based map which shows the distance as six miles along a different route to that provided by the Council.
35. The Council says it has no statutory duty to provide transport for D because:
• D is not attending the nearest available school; and
• although the family meet the low-income criteria, D’s school is more than six miles from his home (as measured using the Council’s GIS system).
36. However, it has explained that it has used its discretionary powers to provide transport for D, as a child meeting the low-income criteria and attending a selective school more than than two miles from his home. It has provided a free bus pass for D on a commercial bus service with a pick-up from a bus stop 1.2 miles from his home. It considers the walking distance to the pick-up point to be reasonable. It says it is the parents’ responsibility to get their children to the pick-up point if they consider this necessary on safety grounds. It says it has no statutory duty to provide new or additional arrangements.
37. In terms of timing, the bus is timetabled to arrive at 8.40am, with D’s school registration at 8.45am. D’s school day ends at 3.35pm and the pick-up time is 3.45pm. The Council has spoken with D’s school which has no record of D being late from September 2019 onwards. However, Mrs C points out that there is a two-week “amnesty period” for new pupils in which lateness is not recorded and they no longer sent D by bus after the first week as it was late. It has also spoken with two staff members at the bus company. One advised that there had been some minor problems with roadworks at the beginning of September 2019. The other was surprised to hear of Mrs C’s concerns as he could not recall any problems with the route.
38. In terms of flexibility, the Council says that “the provision of transport to non-statutory education or clubs does not fall within the Local Authority’s statutory duties and therefore cannot be authorised”.
39. The Council is willing to consider an appeal if Mrs C considers the current arrangements to be unsuitable. However, it emphasises that, in considering any such appeal, whether it has a statutory duty to make “suitable travel arrangements” may be a relevant consideration.
40. The Council is correct to say that it has no statutory duty to make “suitable travel arrangements” if the home to school distance is over six miles and transport is provided on a discretionary basis. The requirement to ensure stress-free travel relates to transport is also provided under that statutory duty. Moreover, even where there is a statutory duty to provide transport (which is not the case here) the Council is only obliged to provide transport than at the start and end of the school day.
41. However, under the Council’s policy, if a child is entitled to discretionary transport, this should be suitable and cost-effective. Moreover, it is open to an applicant to appeal concerning the suitability of any arrangements offered.
42. The Council is not responsible for the daily running of the commercial bus service. So it was appropriate for the Council to refer Mrs C back to the bus company in the first instance in relation to any service problems. It was also reasonable for the Council initially to respond to Mrs C’s complaint about the type of provision and route safety through its complaint process.
43. But when it became clear that Mrs C was continuing to challenge the suitability of the transport in terms of route safety and service reliability, and whether a fuel allowance could be provided instead, the Council should have advised her that she could appeal. It did not do so and this was fault.
44. Although Mrs C is no longer seeking bus transport for D and the school year has now ended, I consider that it would still be appropriate for her to use her appeal right if she wants the Council to consider the suitability of the transport that the Council provided in 2019/20. That is a decision for the Council to take.
45. As part of that appeal, it will be open to Mrs C to provide any information that she wishes in support of her view that the home to school distance is less than six miles (and that the statutory duty would therefore apply), and why she considers the travel arrangements to be unsuitable.
46. If she is then unhappy with the outcome of her appeal, she may complain again to the Ombudsman.

Agreed action

47. The Council has agreed to:
• contact Mrs C within two weeks to see if she wishes to pursue an appeal and, if so, to consider an appeal from Mrs C about the suitability of the transport arrangements offered for D for 2019/20;
• remind officers within one month that, where a complainant raises concerns about the suitability of transport offered and these cannot be resolved informally, they should make the complainant aware of their right to appeal the suitability of the transport offered.

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Final decision

48. I have closed my investigation into Mrs C’s complaint because I consider the agreed actions represent a suitable remedy for the injustice caused by the Council not offering an appeal earlier, and the Ombudsman cannot determine if there is further injustice without knowing the outcome of that appeal.

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Investigator's decision on behalf of the Ombudsman